Joseph Shine versus Union of India

Judges:-
● Deepak Misra
● Rohinton Nariman
● Ajay Manikrao Khanwilkar
● D.Y. Chandrachud
● Indu Malhotra
Case number:- WP(Cr.)194/2017
Parties involved:-
Petitioner:- Joseph Shine
Respondent:- Union of India
Intervenor:-Partners for law in development, Vimochana
Lawyers:-
Petitioner: Kaleeswaram Raj
Respondent : K. K. Venugopal
Intervenor : Meenakshi Arora, Jayna Kothari, Sunil Fernandes

In October 2017, Joseph Shine, a non-resident Keralite, filed public interest litigation under
article 32 of the Constitution. The petition challenged the constitutionality of the offence of
adultery under section 497 of the IPC read with section 198 (2) of the CRPC.
Section 497 IPC criminalise adultery by imposing culpability on a man who engages in sexual
intercourse another person's wife. Adultery was punishable with maximum imprisonment of five
years. Woman, including consenting party, were exempted from the prosecution. Further, a
married woman could not bring forth the complaint under section 497 IPC when her husband
engaged in sexual intercourse with an unmarried woman. This was in View of section 198(2) of
CRPC which specified how are the complainant can file charges for offences committed under
section 497 and 498 IPC.

Issues:-
(1) Whether exemption granted to married woman under section 497 violates the right of
equality under the Constitution?
(2) Whether section 497 should be made gender neutral by including women as offenders?
(3) Whether section 497 is an excessive penal provision which needs to be decriminalised?

Contentions:-
There was three petitions submitted in this case by advocate Meenakshi Arora, advocate
Kaleeswaram and advocate Jayna Kothari.

The three petitions broadly dealt with these three objections against adultery laws in India are:
(1) Violative of Article 14 & 15 of the Constitution
(2) Violation of Privacy
(3) Sanctity of Marriage
 Violative of Article 14 and 15 of the Constitution: Petitioners argued that Article 14 and
Article 15 are violated because adultery is confined to cover only the extramarital affairs of
married women and that of married men. The impugned Section discriminates on the basis of
the sex of the spouse indulging in the extramarital affair.

Violation of Privacy: Adultery laws are an intrusion into the private lives of people where the
relations between the parties are based on mutual consent. Privacy after Puttuswamy judgment
has been recognised as our fundamental right and criminalising a person for relationship
between consensual adults amounts to
invasion of the same.

Sanctity of Marriage: To counter the government’s argument that “decriminalisation of adultery

will erode the sanctity of marriage and of society at large”, the petitioner referred to the question
of “what is sanctity of marriage” and “what is capable of destroying it” as dealt in previous
judgment by Apex Court in Independent Thought v Union of India where it struck down marital
rape with a minor. In that case, the same argument was made by Union of India that striking
down marital rape for minor will
destroy sanctity of marriage. Court held that “The view that “Marital rape of a child has the
potential of destroying the institution of marriage cannot be accepted “. Court gave the
reasoning that divorce and judicial separation law exists. While divorce may destroy the
marriage and judicial separation may dent a marital relationship, but they do not have the
potential of destroying the “institution” of marriage or even the marriage.They both result in
breaking the marriage but this does not imply that marriage as an institution is being destroyed.

(b) On Behalf of Respondents

When Government submitted a counter affidavit in the current case, the affidavit stated that the
decriminalization of adultery will result in weakening the sanctity and laxity in the marital bond”.
But Government’s contention that sanctity of marital bond will be destroyed because of
decriminalization of adultery, it also needed to emphasise what would be the impact on
marriage due to decriminalisation of adultery? Further, this contention also was not supported
by any data/research proving the impact of decriminalisation of adultery on sanctity of marriage.
Additional Solicitor General (ASG), Pinky Anand on behalf of government argued that issue of
adultery is a public issue because marriage is a public affair in India, then Justice Indu Malhotra
asked how a relationship between two adults, which is a matrimonial dispute, could be a crime
against the society. Decriminalization of adultery was being contented for because for declaring
an act to be a criminal offence, it needs to be against society and impacting society in a
negative manner. Adultery on the other hand, involves and impacts only individuals and their
families. Even the involvement of family is no argument to regulate the private sphere of the
family. This brings to another issue in which both sanctity of marriage and privacy have been
quotes- that of marital rape. It is a matter of interest that if in future, a petition contesting marital
rape is raised then would the government again raise the argument of sanctity of marriage?
Issue of marital rape has been at the centre of debate for a long time. Government has chosen
to stay away from it because criminalising marital rape would lead to even more vehement
arguments and opposition than the ones witnessed to adultery laws. The issue perhaps will
come up in the light of Justice Chandrachud remark that “One retains sexual autonomy
even after marriage; the right to say “No” is not forfeited” which has been re emphasised in his
judgment as well.

Judgement:-
In the first vision, as rendered by Justice Dipak Misra, for himself and Justice A.M.
Khanwilkar, equality endorses a progressive society which lacks social dominance of one sex
over the other. It rejects selective protection to women by coming down heavily on account of
them being criminally exempted from prosecution as abettors. On a closer reading, it implies
that the consent or connivance extended by the husband, would validate sexual intercourse of
another man with his wife. The act of a married man engaging in sexual intercourse with a
widow, unmarried or divorced woman, does not constitute adultery under Section 497. Askew
with contradictions and incongruities, the clandestinely cloaked Section 497 fails even on its
purported purpose of punishing the person who puts the matrimonial home at stake. Section
198(2) of the CrPC treats the husband of the woman as deemed to be aggrieved by an offence
committed under Section 497 of the IPC and in the absence of husband, some person who had
care of the woman on his behalf at the time when such offence was committed with the leave of
the court. It fails to recognise the ethos of Constitutional equality as the impugned deem the
wife to be a subservient chattel of her husband. Barring all earlier discussions on sexual agency
and individualistic autonomy, the Court found that the whole scenario is a subset of the private
realm and hence, to attach criminality to the same would be a blatant transgression on part of
the State. This view, thus, warranted the matter to be at the zenith of personal family life and
hence, invalidated Section 497 of the IPC and Section 198(2) of the CrPC as unconstitutional.

In the second version, as penned by Justice Rohinton Fali Nariman, unbroken and undisputed
history and religious texts testify as to adultery being a sin and thus, punishable. He pointed out
that Section 497 of the IPC was bad for want of constitutionality as it is a patent instance of
male chauvinism and insensitive perversion of equality. The law was not conducive to the
modern society and in the light of such revelation, it was unreasonable. Further, it was opined
that the impugned legislation was not an instance of protective discrimination as it was drafted
by a foreign legislature, which contravenes the mandate of Article 15(3) of the Constitution. It
was, thus, declared that Section 497 of the IPC and Section 198(2) of the CrPC are violative of
Articles 14, 15(1), and 21 of the Constitution of India and hence, invalid.

The third view, as envisaged by Justice Dr. Dhananjaya Y. Chandrachud, sets forth an
extensive chronicle of social transformation. Heavily censuring the sexist notion of treating men
as the seducers, it was borne that, on marriage, a woman does not contract away her sexual
agency to her husband. Legislative provisions which further the cause to the contrary only root
such perceptions deeper in the society. Justice Chandrachud proceeded to flesh out the
intricately woven aspect of privacy invasion from the intimate relations of man and wife. By
providing paternalistic protection to women while in actuality, running against them, Section 497
of the IPC failed Article 21. He noticed the various patent incompatibilities and held that Section
497 is unconstitutional as it violates Articles 14, 15 and 21 of the Constitution, is manifestly
arbitrary and antithetical to the constitutional guarantees of liberty, dignity and equality.
In a sagacious account written by Justice Indu Malhotra, the veil of presumption of
constitutionality is lifted from Section 497 in view of it being a pre-constitutional law. It was
observed that Section 497 was replete with various anomalies which on their own prerogative
rendered it as a manifestly arbitrary piece of legislation. Further, the qualifying text of the
impugned provision demonstrated a blatant lack of reasonable classification. Such classification
does not hold ground and thus, fails when tested on the anvil of Article 14. The misplaced
conjecture about Article 15(3) saving Section 497 was disintegrated. In her learned opinion,
Article 15(3) was a devise to gain access to better socio-economic opportunities. It could not be
used as a garb to escape penal consequences. Criminal sanction could not be appended to it
as adultery was not a wrong against the public.

External and Internal Aids Used:-

External Aids -
(1) Historical facts and surrounding circumstances:- This contains various historical facts
which surrounds a particular judgement. In the present case , these are :- In the
judgement of Justice Misra and Justice Khanwilkar, they used certain sayings in the
Smritis from paragraph number: 26,27,28.In judgement of Justice Nariman, he used
various religious and historical facts from Islam, Judaism, Hinduism and Christianity as
mentioned in paragraph 2 to paragraph 10.
(2) Textbooks:- There were several books which were used by the Justices such as:- By
Justice Nariman- THE LAWS OF MANU 150 (Translation by G. Buhler, Clarendon
Press, UK, 1886). DHARMASUTRAS – THE LAW CODES OF APASTAMBA,
GAUTAMA, BAUDHAYANA, AND VASISTHA 70-71 (Translation by Patrick Olivelle,
Oxford University Press 1999)THE KORAN (AL–QUR‘AN): ARABIC-ENGLISH
BILINGUAL EDITION WITH AN INTRODUCTION BY MOHAMED A.ARAFA 363
(Maulana Muhammad Ali Translation, TellerBooks, 2018).By Justice Misra and Justice
Khanwilkar- On the Subjection of Women (John Stuart Mill), The Due Process of
Law(London, Butterworths, 1980). By Justice Chandrachud - Subversive sites: Feminist
Engagements with law in India , Sage Publications, The Alchemy of Race and Rights ,
Cambridge, Harvard University Press, The Post Colonial Critic by Gayatri Spivak. By
Justice Indu Malhotra - The Rise and Fall of English Ecclesiastical Courts, Women
Consumption and Coverture in England.
(3) Foreign Decisions:- 1. Griswold
v. Connecticut, 381 U.S. 489 (1965) [US Supreme Court]
2. Eisenstadt v. Baird, 405 U.S. 438 [US Supreme Court]
3. Toonen v. Australia [CCPR/C/50/D/488/1992]
4. Roberts v. United States Jaycees, 468 U.S. 609 (1984) [US Supreme Court]
5. DE v RH, [2015] ZACC 18 [South African Supreme Court]
6. JS v. LC (SA77-14) [2016] NASC (19 August 2016) [Namibia Supreme Court]
7. Regina v. R. [1990] UKHL 9 (23 October 1991) [United Kingdom House of Lords]
(4) Statutes in pari materia: Section 4, Law Reforms (Miscellaneous Provisions ) Act 1970,
Constitution of India
 (5) International Covenant:-statement by the United Nations working group on discrimination
against women in law and in practice.
https://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?
NewsID=12672&LangID=E

Internal Aids :-
There are several internal aid of interpretation is used in this particular judgement such as :-
(1) Headings- (1)IPC - Section 497 :Adultery
IPC - Section 498: enticing or taking away or detaining with
criminal intent a married woman.
CRPC- Section 198: Prosecution for offences against
marriages
(2) Definition Clauses- Article 366 of the Constitution of India
(3) Explanation - the Explanation (a) to Section 498-A IPC
(4) Proviso - section 198 of CRPC 1973